erty attached upon the original process, provided it be done before any last will of the deceased shall have been proved, or letters of administration have been granted upon his estate. Stat. 1822, ch. 93— Ante, page 409 M. R. 209.

4. Of the manner of levying the execution.

Upon the delivery of an execution to an officer, he is bound to levy it with as much secrecy and despatch as possible, for he takes the hazard of any changes that may take place in the situation of the debtor, after the execution comes into his hands.

In general, the creditor or his attorney makes his election of the manner in which the service shall be made, and to this the officer is bound to conform.

The creditor is not bound to regard the attachment made upon the mesne process, but he may waive it, and seize either the goods, lands, or body of the debtor.-14 M. R. 237.

If the service is made with the knowledge or subsequent assent of the creditor, it is sufficient proof of his directions.-11 M. R. 317-14 M. R. 473.

But, if the officer proceed contrary to his directions, the creditor will not be so far bound as to lose a security he had previously acquired.-Ibid.

Thus, where goods were attached on mesne process, and the execution delivered to the officer, within the thirty days, and the officer neglected to seize the goods, but the body of the debtor was arrested by another deputy and committed to prison, and released therefrom upon taking the poor debtor's oath : this having been done without the consent of the creditor, was held not to take away the right of the creditor to levy his execution upon the property attached on the original process.-11 M. R. 320.

But, if the creditor choose an appraiser, or receive seizin of the lands levied upon, it is sufficient proof that he gave directions to have his execution levied in that manner.-8. M. R. 113.

5. Of the seizure and sale of goods on execution. a. What goods may be taken on execution.

All property that comes under the general denomination of chattels, may be seized on execution, excepting only such personal property as is exempted from attachment, and whatever may be attached on mesne process is liable to be taken and sold on execution.-Ante, F. 2, 3, 4, 5, 6, 7.

. The rule extends not only to personal chattels, but to chattels real, such as a term for years, which cannot be extended upon, but must be sold by the sheriff on the execution, as other chattels.-15 M. R. 439. Where one held an estate under a lease of 999 years, it was held to be a chattel interest only.—5 M. R. 419.

So a building, erected by the debtor upon the land of another man with his consent, is considered the personal property of the debtor, and may be taken and sold on execution as such.-4 M. R. 514—5 Pick. 189.

But, if one place a building upon land of another without any contract, perhaps it could not be removed.—16 M. R. 449.

Buildings erected by a tenant upon the estate of his landlord, and which are not properly fixtures, may be taken down while the tenant remains in pos

session.-8 M. R. 411.

Machines for carding wool, although placed in a building constructed for using them, yet being so constructed, as that they may be placed and used in another building, may be taken and sold as personal property on execution.-14 M. R. 352.

Iron stoves set in a chimney are a part of the real estate, and belong to the house.—7 M. R. 432.

So is a kettle set in a fulling mill.-15 M. R. 159. An officer cannot take things fixed to the freehold, as furnaces, coppers, &c., set for the purposes of trade, nor windows or doors.-4 Com. Dig. 221.

But when machines, coppers, &c., are placed in a building by a tenant, who does not own the building, and the same may be removed without great damage to the property, it is apprehended they may be taken on execution against the tenant.-14 M. R. 352— 4 Com. Dig. 221.

Hearths and chimney pieces, for the use of a dwelling house, cannot be taken.-4 Com. Dig. 221.

Choses in action, such as stocks in banks, libraries, &c., likewise equitable interests, whether in real or personal estates, cannot be taken in execution, only where they are made liable by some statute.4 Com. Dig, 224-9 Johns. 96-5 Dane, 38-Ante, F.

The goods of one deceased, in the hands of his executor, or administrator, are liable to be taken in execution; nor would it make any difference, if they are charged in the inventory, or administration account.-9 M. R. 74.

They may be taken, also, for the personal debts of the administrator, if he should use and treat them as his own.-1 B. and P. 293—2 Esp. R. 687.

Corn, or any other product of the ground of annual or artificial growth, may be taken when ripe and fit to be gathered, and sold on execution.-7 M. R. 34.

But, when growing upon land of the debtor, it cannot be taken or sold before it is ripe.-Com. Dig. Execution, 221.

A growing crop, belonging to the debtor, but upon land of another, may be taken upon a fi. fa. in New York. The objection to taking such property here, is, that our statute, directing the levy of executions, has repealed the common law upon this subject; and by that statute the goods must be taken and kept by the officer four days.

Where the tenant hired the land, agreeing to return the landlord one half of the crops as rent, it was held the interest of the whole crop was in the tenant,

and liable to be taken by his creditors. The officer sold the interest of the tenant to the crop in January ; the next month the lease was terminated, he having an interest in the crops sown. The purchaser maintained trespass quare clausum fregit, against the landlord and his servants for gathering the crop, in the summer following.-9 Johns. 108-1 Swift's Dig. 796-Whipple vs. Foot, 2 Johns. 418.

Money, in possession of the debtor, may be taken; but, if an officer has collected money on an execution in favor of A., he cannot take the same money on another execution against A., and in favor of B., for it is not A's. money until it is actually paid over to him.-1 Cranch. 117, 136.

6. Of the manner in which goods are to be kept and sold by the officer on execution.

When any goods or chattels shall be taken to satisfy an execution, they shall be safely kept by theofficer, at the expense of the debtor, for the space of four days next after they are so taken; and if within that time the owner shall not redeem the same by otherwise satisfying the execution, such goods or chattels shall be sold at public vendue, to the highest bidder, having first been advertised, by posting up notifications of the time and place of sale, forty-eight hours before the expiration of the four days, in the town or place where the sale is to be, and the money arising upon such sale, shall be applied to the paying charges and satisfying the execution, and the officer shall return the overplus (if any there be) to the debtor. And the officer, who is possessed of the execution, shall return the same with his doings therein, particularly describing the goods taken and sold, and the sum for which each article was struck off; and for any fraud in such sale or return, he shall be liable to pay the debtor five times the sum defrauded.— St. 1783, ch. 57.

This statute, it will be perceived, deprives the officer of his discretion at common law, in prescribing the time and manner of selling the goods upon a fi. fa.-5 M. R. 399.

If an officer neglects to sell the goods taken on an execution, pursuant to the statute, his property in them will be lost, and they will be liable to be taken by other creditors.—Ibid-Big. Dig. 335.

But if the goods are not taken by other crèditors, the officer may advertise and sell them after the fourth day, and apply the same to satisfy the execution; yet he will be answerable to the debtor for any charges occasioned by the delay.-Ibid-1 Greenleaf, 198.

So, if the debtor shall have reclaimed the goods, the officer may take them again by a new levy.— Ibid.

If the time for the sale is set more than four days from the seizure by the officer, he will have no authority to sell them, without a new taking and advertising.-Ibid.

If a sheriff finds it impracticable, from any unforeseen cause, to make sale at the time appointed, he may adjourn the sale for a reasonable time, and thus preserve his lien on the goods.-9 M. R. 265-5 Johns. 345—4 Pick. 354.

When an execution is against one of two tenants in common or joint tenants of personal property, the sheriff must seize the whole, but must sell only the share of the debtor, and the vendee will be tenant in common with the other proprietors.-1 East. 367— 15 Johns. 180.

Where a sheriff, in such a case, sold the whole property, the other owner maintained against him an action of trespass. He might, likewise, have maintained trover; or money had and received for his share of the purchase money.-15 M. R. 82.

Or, he might have waived any action against the sheriff, and have elected to consider himself a tenant in common with the purchaser.—2 Johns. 468.